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District Court 22 June 2018

R v Gerges

[2018] NSWDC 483

Drugs
CRIMINAL SENTENCE BUTYROLACTONE DANCE PARTY DRUG DETECTION DOG SUBJECTIVE MATTERS

Citation: R v Gerges [2018] NSWDC 483
Court: District Court of New South Wales
Date: 22 June 2018
Judge: King SC DCJ

Background

The offender was a 24-year-old man who attended a New Year's Eve dance party at the Hordern Pavilion on 31 December 2016. Police using a drug detection dog observed signs of intoxication and a dog indication near the offender. After a search, officers found three 50 ml bottles concealed in his shorts containing a total of 115.39 grams of gamma-butyrolactone (GHB), along with three syringes.

When questioned, the offender admitted the drugs were not solely for his own use and stated he had brought them in "for the boys," explaining he intended to share with friends attending the event. He declined to participate in a formal police interview after speaking with a solicitor, which was his right.

The offender was committed for sentence from the Local Court on 11 May 2017, having entered a plea at the earliest opportunity. The sentencing proceedings in the District Court were extended over several months in part due to the preparation of psychological evidence and an Intensive Correction Order (ICO) suitability assessment.

  • What objective seriousness applied to the supply offence, having regard to the quantity and circumstances of the drug seizure?
  • Whether the offender's account that the drugs were for sharing with friends, rather than for commercial supply, was credible and what weight it should receive.
  • What sentence was proportionate, taking into account subjective factors, the utilitarian value of the early guilty plea, and the purposes of sentencing including general and specific deterrence?
  • Whether the sentence should be served by way of an Intensive Correction Order rather than full-time custody.

Decision

His Honour assessed the offence as falling in the mid-range of objective seriousness for supply of more than an indictable quantity of gamma-butyrolactone. The quantity (115.39 grams) was more than twice the indictable threshold of 50 grams and nearly four times the trafficable quantity of 30 grams, though it represented approximately one-tenth of the quantity that would attract the next, more serious tier of the offence.

The offender's explanation that he intended only to share the drugs with approximately 15 friends was found to be implausible. His Honour observed that 115.39 grams divided among 15 people would amount to just over 7 grams per person, and that the presence of three separate syringes was consistent with measuring out discrete doses for others. However, the court was unable to conclude beyond the relevant standard that the offender intended to supply for financial reward.

Strong general and specific deterrence were identified as significant sentencing considerations. His Honour noted the well-documented harm caused by prohibited drugs at dance party venues. The psychological evidence presented on behalf of the offender was afforded limited weight: the court found that the psychologist's letter had been prepared at very short notice at the request of defence lawyers, and that the earlier psychological report had not recommended treatment for drug addiction or conduct directly related to the offending.

The offender was assessed as suitable for an ICO. Having regard to the 25 per cent discount for the early guilty plea (in accordance with Thomson and Houlton), His Honour imposed a sentence of 18 months' imprisonment to be served by way of an ICO.

Orders Made

  • The offender was convicted and sentenced to 18 months' imprisonment, to be served by way of an Intensive Correction Order commencing 22 June 2018.
  • Conditions of the ICO included: good behaviour and no further offences; residence at an approved address; no departure from NSW or Australia without permission; compliance with supervisor directions; submission to alcohol and drug testing, surveillance and monitoring; home visits from a supervisor; participation in offending behaviour programs; and 32 hours of community service per month.
  • A backup charge of possessing the 115.39 grams of gamma-butyrolactone (Sequence 2) was withdrawn and dismissed.

Key Takeaways

  • The District Court held that possession of more than twice the indictable quantity of gamma-butyrolactone in circumstances consistent with sharing at a dance party constitutes a mid-range offence of objective seriousness, even absent evidence of commercial supply.
  • A claim that drugs were brought in solely for personal sharing among friends may be rejected as implausible where the quantity and paraphernalia are inconsistent with that account, even if commercial supply cannot be positively established.
  • Under Thomson and Houlton, a plea entered at the earliest opportunity attracted a 25 per cent discount for utilitarian value, which the court applied in calculating the final sentence.
  • Psychological evidence offered in mitigation was given limited weight where the relevant report was prepared at very short notice, did not address drug dependency, and was not directly connected to the circumstances of the offending.
  • An Intensive Correction Order remained available even for a mid-range drug supply offence where the total sentence did not exceed two years and the offender was assessed as suitable, though His Honour emphasised that imprisonment (in this form) was still the necessary outcome given the quantity involved and the need for deterrence.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Crimes (Administration of Sentences) Regulation 2008 (NSW), s 175

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383 (25 per cent discount for early guilty plea)